HomeMy WebLinkAboutRes 2004-59 ,. RESOLUTION NO. 2004-59
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDMENT
TO THE LEASE-PURCHASE AGREEMENT BETWEEN THE TOWN OF
FOUNTAIN HILLS, ARIZONA MUNICIPAL PROPERTY CORPORATION
AND THE TOWN OF FOUNTAIN HILLS; APPROVING THE FORM AND
AUTHORIZING THE EXECUTION OF A SUPPLEMENT TO THE
INDENTURE AND AN AMENDMENT TO THE ASSIGNMENT
AGREEMENT BETWEEN THE CORPORATION AND ZIONS FIRST
NATIONAL BANK; AUTHORIZING THE PREPARATION AND APPROVAL
OF PRELIMINARY AND FINAL OFFICIAL STATEMENTS PERTAINING
TO THE CORPORATION'S REVENUE BONDS, SERIES 2004; APPROVING
THE ISSUANCE OF NOT TO EXCEED $3,800,000 OF TOWN OF
FOUNTAIN HILLS, ARIZONA, MUNICIPAL PROPERTY CORPORATION
MUNICIPAL FACILITIES REVENUE BONDS, SERIES 2004, SECURED BY
RENTAL PAYMENTS MADE PURSUANT TO THE AMENDED LEASE-
PURCHASE AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS,
ARIZONA, AND THE CORPORATION; APPROVING THE PLEDGE OF
EXCISE TAXES AS SECURITY FOR THE RENTAL PAYMENTS; SETTING
CONDITIONS AND PARAMETERS WITH RESPECT TO SUCH SALE;
AUTHORIZING MULTIPLE SERIES OF BONDS; AUTHORIZING THE
TAKING OF ALL OTHER ACTIONS NECESSARY TO THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
RESOLUTION INCLUDING THE EXECUTION AND DELIVERY OF A
DEBT SERVICE RESERVE FUND POLICY AGREEMENT; DELEGATING
CERTAIN DUTIES; AND DECLARING AN EMERGENCY.
WHEREAS, as of July 1, 2000, the Town of Fountain Hills (the "Town") and The Town
of Fountain Hills, Arizona, Municipal Property Corporation (the "Corporation") entered into a
Lease-Purchase Agreement recorded as Document Number 2000-0545783 in the office of the
Maricopa County Recorder's Office (the "Lease-Purchase Agreement"); and
WHEREAS, as of July 1, 2001, the Town and the Corporation entered into a First
Amendment to Lease-Purchase Agreement recorded as Document Number 2001-1205691 in the
Office of the Maricopa County Recorder's Office (the "First Amendment"); and
WHEREAS, the Corporation and Zions First National Bank (successor to National Bank
of Arizona, which was successor trustee to BNY Western Trust Company), as trustee, entered into
a Trust Indenture dated as of July 1, 2000 (the "2000 Indenture"); providing for the issuance of
$4,680,000 of The Town of Fountain Hills, Arizona, Municipal Property Corporation Municipal
Facilities Revenue Bonds, Series 2000 (the "Series 2000 Bonds"); and
(1160, WHEREAS, the Corporation and the Trustee entered into a First Supplement to Indenture
dated as of July 1, 2001 (the "First Supplement") providing for the issuance of$7,750,000 of The
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Town of Fountain Hills, Arizona, Municipal Property Corporation Municipal Facilities Revenue
Bonds, Series 2001 (the "Series 2001 Bonds"); and
WHEREAS, the Town and the Corporation now wish to and deem it necessary to:
(1) enter into a Ground Lease, dated as of November 1, 2004 (or such later date as determined by
the Town Manager) between the Town as lessor and the Corporation as lessee; (2)enter into an
Amendment to Lease-Purchase Agreement to be dated as of November 1, 2004 (or such later date
as determined by the Town Manager) (the "Second Amendment") (the Lease-Purchase Agreement
as amended by the First Amendment, the Second Amendment and any other amendment shall be
referred to as the "Lease"), in order to provide for the lease-purchase by the Town as lessee of the
Series 2004 Project (as defined in the Lease); (3) approve the sale by the Corporation of its
Municipal Facilities Revenue Bonds, Series 2004 (the "Series 2004 Bonds") secured by rental
payments made pursuant to the terms of the Lease, and issued pursuant to the Indenture, as
supplemented by the First Supplement, the Second Supplement to the Trust Indenture, dated as of
November 1, 2004 (or such later date as determined by the Town Manager) (the "Second
Supplement") (the 2000 Indenture as supplemented by the First Supplement, the Second
Supplement and any other supplement shall be referred to as the "Indenture"); and (4) pay the
costs of issuance of the Series 2004 Bonds; and
WHEREAS, the Town deems it necessary to finance the costs of acquiring, constructing,
improving and equipping buildings, facilities, improvements and equipment comprising Phase II
of the Fountain Hills Civic Center and any other real and personal property suited for any use by
and for leasing to the Town or its agents or instrumentalities through the Second Amendment and
the Second Supplement and to issue and sell not to exceed $3,800,000 of the Series 2004 Bonds
and to increase the Rental Payments (as defined in the Indenture) to be made by the Town
pursuant to the terms of the Lease to cover the increased debt service caused by the issuance of the
Series 2004 Bonds; and
WHEREAS, the Reserve Fund (as such term and all other initially capitalized terms used
herein are hereinafter defined or defined in the Indenture) was created with respect to the Series
2000 Bonds and the Series 2001 Bonds by the issuance of a Qualified Surety Obligation (as
defined in the Indenture) in the aggregate amount of$1,011,406; and
WHEREAS, the Town may desire that the Reserve Requirement be satisfied by cash, a
Qualified Surety Obligation or a combination of the two; and
WHEREAS, there have been placed on file with the Town and presented to the meeting at
which this 2004 Town Resolution was adopted (i) the proposed form of the Second Amendment;
(ii)the proposed form of the Second Supplement; (iii) the proposed form of the Notice Inviting
Bids for the Purchase of Bonds (the "Notice Inviting Bids"), prepared by the Town Manger and
Town Accounting Supervisor with the assistance of Peacock, Hislop, Staley & Given, Inc. (the
"Financial Consultant"); (iv) the proposed form of Ground Lease between the Town and the
Corporation pertaining to the real property upon which the Series 2004 Project is to be located;
(v)the proposed form of a Second Amendment to the Assignment Agreement dated as of
November 1, 2004 (or such later date as determined by the Town Manager) between the
Corporation and the Trustee (the "Second Amendment to the Assignment"); (vi) a form of Debt
Service Reserve Fund Policy Agreement; (vii) a form of Continuing Disclosure Undertaking (the
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(Iry
"Undertaking") and (viii) a draft of the Preliminary Official Statement relating to the Series 2004
Bonds; and
WHEREAS, the Series 2004 Bonds will be sold through public bidding pursuant to the
Notice Inviting Bids to the winning bidder, as chosen by the Town Manager, acting for the
Corporation when bids are received, provided such bid is in accordance with the conditions and
parameters set forth herein and in the Indenture; and
WHEREAS, if it is determined to be in the best interest of the Town and the Corporation,
the Series 2004 Bonds authorized herein may be issued in more than one series, with
distinguishing series designations, in the aggregate not to exceed the maximum amount permitted
hereby; and
WHEREAS, the Town hereby adopts this 2004 Town Resolution and approves and
authorizes the execution of the Ground Lease, the Second Amendment, the Second Supplement,
the Second Amendment to the Assignment, the Debt Service Reserve Fund Policy Agreement, the
Undertaking and all other documents and certificates necessary for the issuance and sale of the
Series 2004 Bonds.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows:
SECTION 1. Definitions.
1�,• "Financial Consultant" means Peacock, Hislop, Staley & Given, Inc.
"First Amendment" means the First Amendment to the Lease-Purchase Agreement dated
as of July 1, 2001.
"First Supplement" means the First Supplement to Trust Indenture dated as of July 1,
2001.
"Indenture" means the Trust Indenture dated as of July 1, 2000, as supplemented by the
First Supplement and the Second Supplement and all later supplements.
"Lease" means the Lease-Purchase Agreement dated as of July 1, 2000, as amended by the
First Amendment and the Second Amendment and all later amendments.
"Prepayments" means any prepayments made pursuant to the Lease.
"Project" means the following: (i)the Series 2004 Project, (ii) the Series 2000 Project,
(iii)the Series 2001 Project, and (iv) such other buildings, equipment and other real and personal
properties suitable for use by and for leasing to the Town or its agencies or instrumentalities, as
may hereafter be subject to the Lease as amended or supplemented.
"Rental Payments" means the payments to be made by the Town under the Lease.
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"Reserve Requirement" means as to all Obligations now outstanding and as to any other
Additional Obligations for which the Reserve Fund is required to be funded, the lesser of an
amount equal to the Maximum Annual Debt Service Requirement for the Obligations, 125% of the
average Annual Debt Service Requirement for the Obligations or 10% of the stated principal
amount of the Obligations. The Reserve Requirement may be satisfied by cash, a Qualified Surety
Obligation, or a combination of the two.
"Second Amendment" means the Second Amendment to Lease-Purchase Agreement,
dated as of November 1, 2004 or such later date as determined by the Town Manager.
"Second Supplement" means the Second Supplement to Trust Indenture, dated as of
November 1, 2004 or such later date as determined by the Town Manager.
"Series 2004 Bonds" means The Town of Fountain Hills, Arizona, Municipal Property
Corporation Municipal Facilities Revenue Bonds, Series 2004.
"Series 2004 Bond Insurer" means, if any, the issuer of the Series 2004 Bond Insurance
Policy.
"Series 2004 Bond Insurance Policy" means, if obtained, the Bond Insurance Policy
pertaining to the Series 2004 Bonds.
"Series 2004 Project" means (1) acquisition, construction, improvement and equipping of
the buildings, facilities, improvements and equipment comprising Phase II of the Fountain Hills
Civic Center and (2)the payment of the costs of issuance of the Series 2004 Bonds.
"Series 2004 Rental Payments" means the additional Rental Payments to be made by the
Town under the Second Amendment which are assigned by the Corporation to the Trustee by the
Second Supplement.
"2004 Closing Date" means the date on which the Series 2004 Bonds are initially delivered
to the winning bidder.
SECTION 2. Findings and Determinations. The Mayor and Council find and determine
that the financing of the Series 2004 Project pursuant to the terms of the Lease, the issuance of the
Series 2004 Bonds pursuant to the Indenture, the entry into the Ground Lease, the Second
Amendment, and the Second Supplement, the Second Amendment to the Assignment, the Debt
Service Reserve Fund Policy Agreement and the Undertaking are all in furtherance of the
Corporation and the Town's purposes, in the public interest and will enhance the standard of living
within the Town.
SECTION 3. Authorization of the Series 2004 Bonds. The Mayor and Council hereby
approves the sale, issuance and delivery of the Series 2004 Bonds by the Corporation. The Series
2004 Bonds shall be designated "Town of Fountain Hills, Arizona, Municipal Property
Corporation Municipal Facilities Revenue Bonds, Series 2004" and shall be issued in a principal
amount of not to exceed $3,800,000. The Series 2004 Bonds shall be in the denomination of
$5,000 or any integral multiples thereof; all Series 2004 Bonds shall be dated November 1, 2004,
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or such later date as is set forth in the official statement pertaining to the Series 2004 Bonds, and
shall bear interest from such date payable on January 1 and July 1 of each year, commencing
July 1, 2005 or such later date as is set forth in the Official Statement pertaining to the Series 2004
Bonds and shall be fully registered Bonds without coupons initially issued in book-entry form as
provided in the Indenture. The Accounting Supervisor is authorized to sign a blanket letter of
representations relating to The Depository Trust Company's book-entry program and any contract
required to implement such book-entry program. The interest rate on the Series 2004 Bonds shall
not exceed 5.5% per annum, and the Series 2004 Bonds shall mature on July 1 in not to exceed
approximately fifteen (15) years from the date of the Series 2004 Bonds.
The forms, terms and provisions of the Series 2004 Bonds and the provisions for the
signatures, authentication, payment, registration, transfer, exchange, redemption and number shall
be as set forth in the Indenture and the Notice Inviting Bids and as such, are hereby approved. The
Town Manager is authorized to complete the Notice Inviting Bids and modify any terms or
provisions of the Series 2004 Bonds, provided such terms and provisions are within the parameters
of this Resolution.
If the terms and conditions of the Notice Inviting Bids meet the terms and conditions for
the Bonds set forth herein, then the sale of the Series 2004 Bonds to the winning bidder pursuant
to the provisions of the Notice Inviting Bids is hereby authorized. The Series 2004 Bonds shall be
delivered to or upon the order of the winning bidder upon receipt of payment therefor. The
officers, employees and attorneys of the Town and the Corporation are hereby vested with all
power and authority to issue, sell and deliver the Series 2004 Bonds in accordance herewith.
SECTION 4. Authorization of Documents. The form, terms and provisions of the
Ground Lease, the Second Amendment, the Second Supplement, Second Amendment to the
Assignment, the Notice Inviting Bids, the Undertaking and the Debt Service Reserve Fund Policy
Agreement (including all exhibits thereto) are hereby approved in substantially the form of such
documents presented at the meeting at which this Resolution was adopted or on file with the
Town, with such insertions, deletions and changes as shall be approved by the Town Manager or
the Accounting Supervisor of the Town, with the concurrence of the President of the Corporation.
Execution and delivery of such documents by the parties thereto shall constitute concurrence and
approval of the terms and provisions set forth therein. The Mayor, Vice Mayor, Town Manager or
Accounting Supervisor of the Town, are each specifically authorized to insert the final terms and
conditions of the Series 2004 Bonds in any of the foregoing documents, so long as such term and
conditions are within the parameters of this Resolution. The Mayor, Vice Mayor, Town Manager
or Accounting Supervisor of the Town, are each hereby authorized and directed to execute and
deliver the documents approved by this Resolution which are to be executed by or for the Town
and such other documents and instruments and make such certifications and declarations as are
necessary to complete the transaction and the execution of such documents shall be conclusive
evidence of such approval. The titles of the Bonds, Second Amendment, Second Supplement,
Second Amendment to the Assignment and other documents may be changed for purposes of
clarity in the event refunding bonds of the Corporation are issued prior to or simultaneously with
the issuance of the Series 2004 Bonds or the Series 2004 Bonds are issued in calendar year 2005.
SECTION 5. The Official Statement. The draft Preliminary Official Statement on file
with the Town is hereby approved for use with respect to the sale of the Series 2004 Bonds. The
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Town Manager shall oversee the final preparation of the Preliminary Official Statement. The
Town Manager or Accounting Supervisor is hereby authorized to deem such preliminary official
statement "final" for all purposes of Section 240.15c2-12, General Rules and Regulations,
Securities Exchange Act of 1934 (the "Rule"), and its circulation and distribution by the Town and
the Corporation are hereby approved. The Town and the Corporation will cause the final official
statement (the "Official Statement") in substantially the form of the Preliminary Official Statement
referred to above to be prepared and distributed with the Series 2004 Bonds. The Mayor, Town
Manager or Accounting Supervisor are hereby authorized to deem the Official Statement "final"
for all purposes of the Rule and to approve, execute and deliver the Official Statement on behalf of
the Town. Such execution shall be deemed conclusive evidence of approval of the Official
Statement.
SECTION 6. Continuing Disclosure. The Town hereby acknowledges that it is the
"obligated person" (as defined in the Rule) with respect to the Series 2004 Bonds and agrees to
comply with the requirements of the Rule as set forth in the Undertaking. The Accounting
Supervisor and other employees, agents and contractors of the Town are authorized to comply
with the terms and provisions of the Undertaking. The Undertaking shall be for the benefit of the
beneficial holders of the Series 2004 Bonds. To the extent now or hereafter permitted by law, the
cost of compliance with the Rule and other terms and provisions of the Undertaking shall be paid
from Town excise taxes. The failure to provide therefor shall be a default under this section of
this Resolution only and shall not be a default for purposes of the Lease or the Indenture.
SECTION 7. Request for Trustee and Corporation Action. The Town hereby requests the
Corporation and the Trustee to take any and all actions necessary to cause the issuance, sale and
delivery of the Series 2004 Bonds and the financing of the Series 2004 Project. The Town hereby
requests the Corporation and the Trustee to take any and all action necessary in connection with
the execution and delivery of the Ground Lease, the Second Amendment, the Second Supplement,
the Undertaking, the Second Amendment to the Assignment and, if applicable, the Debt Service
Reserve Fund Policy Agreement.
SECTION 8. Security for the Series 2004 Bonds. For the payment of the principal of,
premium, if any, and interest on the Series 2004 Bonds and any other amounts due under the
Lease or Indenture, the Town shall pay and transfer to the Trustee the Rental Payments provided
for in the Lease and the other amounts required to be paid by the Town pursuant to the provisions
of the Lease.
In addition to other security provided for in the Indenture, the Town hereby absolutely and
unconditionally pledges, on a first lien basis, the Town's Excise Taxes as security for the payment
of all Rental Payments due under the Lease.
The obligation to make Rental Payments will not constitute an obligation of the Town for
which the Town is obligated to levy or pledge any form of ad valorem taxation nor does the
obligation to make rental payments under the Lease constitute an indebtedness of the Town or of
the State of Arizona or any of its political subdivisions within the meaning of the Constitution of
the State of Arizona or otherwise
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For all purposes of this Resolution the term "Excise Taxes" shall mean all unrestricted
fines and forfeitures, licenses and permit fees, transaction privilege (sales) taxes, other transaction
privilege, excise and business taxes, franchise fees and taxes, bed and rental taxes and income
taxes which the Town now or in the future imposes and collects, and all state shared sales and
income taxes and State revenue sharing collected and allocated or apportioned to the Town by the
State or any political subdivision thereof, which are not required by State law, rule or regulation to
be expended for other purposes. This Resolution and the execution and delivery of the Second
Amendment shall be deemed an amendment to all assigned agreements (as defined in the
Indenture) to include in the pledge of excise taxes all franchise fees, fines and forfeitures collected
by the Town.
For all purposes of this Resolution the term "Lease Payments" shall mean the payments to
be made by the Town pursuant to the Lease. The Lease commits the Town to pay Rental
Payments for a certain period during the time the Series 2000 Bonds, the Series 2001 Bonds, the
Series 2004 Bonds and any Additional Obligations (all as defined in the Indenture) will be
outstanding. The aggregate of Rental Payments to be made under the Lease are intended to be co-
extensive with the principal and interest payments to be paid by the Corporation on the Series
2000 Bonds, the Series 2001 Bonds, the Series 2004 Bonds and any Additional Obligations issued
pursuant to the Indenture on a parity therewith.
SECTION 9. Resolution a Contract. After any of the Series 2004 Bonds are delivered by
the Trustee to the winning bidder thereof upon receipt of payment therefor, this Resolution shall
be and remain irrepealable until the Series 2004 Bonds and the interest thereon shall have been
fully paid, cancelled and discharged.
SECTION 10. Approving Insurance. The Accounting Supervisor is authorized to aid the
Corporation in acquiring for the Series 2004 Bonds a financial guaranty insurance policy and to
pay the Initial Insurance Premium (as defined in the Indenture), if the Accounting Supervisor
determines such policy is in the best interests of the Town and the Corporation. The Accounting
Supervisor may expend or provide for the reimbursement from Series 2004 Bond proceeds the
amount required to purchase bond insurance or other credit enhancements for all or part of the
Series 2004 Bonds. The Accounting Supervisor and the Trustee are authorized and directed to pay
or cause to be paid such premiums, fees or costs, together with all other fees, costs and expenses
of issuance, from Series 2004 Bond proceeds. The Accounting Supervisor is authorized to make
such changes to the Second Amendment, Second Supplement and other agreements as may be
requested by any provider of credit enhancement or the rating agencies if such changes are
determined by the Accounting Supervisor to be in the best interests of the Town and the
Corporation.
SECTION 11. Qualified Surety Obligation. The Accounting Supervisor of the Town is
hereby authorized and directed, if it is in the best interest of the Town and the Corporation, to
obtain a Qualified Surety Obligation conforming to the requirements of the Indenture or provide
cash in order to meet the Reserve Requirement. The Trustee is authorized and directed to accept
the Qualified Surety Obligation or cash if such deposit complies with the Indenture. The
Corporation and the Town and the officers thereof are further authorized and directed to take such
action and execute such documents and agreements, including the debt service reserve fund policy
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agreement or such other agreement for repayment of draws under the Qualified Surety Obligation,
as may be necessary to obtain the Qualified Surety Obligation.
SECTION 12. Issuance in One or More Series. If it is advantageous to the Corporation
and the Town, as determined by the Town Manager or the Accounting Supervisor of the Town,
the Series 2004 Bonds may be issued in more than one series from time to time, without further
action of the Board or the Council, provided that the aggregate principal amount of all such series
not exceed $3,800,000. If issued in more than one series, each series shall be designated to
distinguish it from the others, and shall have such dated date, interest rates, maturity dates,
principal amounts, redemption provisions and other terms as are determined pursuant to the
provisions hereof, and all references herein to the Series 2004 Bonds, the Second Amendment, the
Second Supplement and other documents shall also refer to the bonds and corresponding similar
documents entered into from time to time for each separate series with such titles, dated date and
other designations as may be appropriate to distinguish the documents of each series. The sale and
issuance of the Series 2004 Bonds may be combined with the issuance and sale by the Corporation
of any series of its refunding bonds.
SECTION 13. Qualified Tax-Exempt Obligations. In the event the Corporation does not
issue its refunding bonds in the same calendar year as the Series 2004 Bonds, the Series 2004
Bonds may be "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code
and will be designated appropriately in the official statement and in certifications made at the time
of closing of the Series 2004 Bonds. The Board hereby delegates the authority to designate some
or all of the Series 2004 Bonds as "qualified tax-exempt obligations" to the Town Manager or the
Accounting Supervisor.
SECTION 14. Authorization and Ratification. All actions of the officers and agents of
the Corporation, the Town or the Mayor and Council of the Town which conform to the purposes
and intent of this Resolution and which further the issuance and sale of the Series 2004 Bonds as
contemplated by this Resolution, whether heretofore or hereafter taken are ratified, confirmed and
approved. The proper officers and agents of the Town are authorized and directed to do all such
acts and things and to execute and deliver all such documents on behalf of the Town as may be
necessary to carry out the terms and intent of this Resolution.
SECTION 15. Severability. If any section, paragraph, clause or phrase of this Resolution
shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section, paragraph, clause or phrase shall not affect any of the remaining provisions of this
Resolution.
SECTION 16. Emergency. The immediate operation of the provisions of this Resolution
is necessary for the preservation of the public peace, health, life and property of the Town of
Fountain Hills, an emergency is hereby declared to exist, and this Resolution shall be in full force
and effect from and after its passage, adoption and approval by the Mayor and Council of the
Town of Fountain Hills, and it is hereby exempt from the referendum provisions of the
Constitution and laws of the State of Arizona.
Shaw
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fir► PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, November 4,2004.
FOR THE OF'FOUNTAIN HILLS: ATTESTED TO:
f '
W. J. Nils, May Bevelyn J. d , Town Clerk
REVIEWED BY: APPROVED AS TO FORM BY:
G T ROSENFELD, P.L.0
r" I/04-e z J
Timothy G. Pickering, Town Manager Scott Ruby, Bond Cou 1
L
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